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Even the Supreme Court seems more concerned with feelings than with the law

By Cal Thomas

7:00 a.m. EDT, July 7, 2012

When asked at the close of the Constitutional Convention in 1787 what the Founders had wrought, Benjamin Franklinfamously said, "A Republic, if you can keep it."

That question might also be put to the five Supreme Court justices who voted last week to uphold the constitutionality of the Affordable Care Act, which mandates health insurance for most Americans, based on twisted logic that it is a tax and thus within the power of the Congress to impose on an already overtaxed people.

Even better than the question of what the court has allowed government to do is: What does its ruling says about us?

Rugged individualists founded and helped preserve America through many challenges. They believed we should first take care of ourselves and help our neighbors, with government intervening only as a last resort. Today we are rapidly becoming a collective in which government penalizes achievement and subsidizes failure, thus producing less of the former and more of the latter. Apparently promoting the "general welfare" has come to mean welfare. Food stamp ads run on the radio. The USDA pays for the ads, which encourage more people to apply for the program.

Among the avalanche of postmortems delivered by "experts" and pundits after the court ruling, one may have gotten closest to answering the question about what was in the mind of Chief JusticeJohn G. Roberts Jr.and how it reflects on what our nation is becoming.

Paul Rothstein, a professor at Georgetown Law School, taught Chief Justice Roberts when he was a student. In an interview withWashington, D.C., radio station WTOP, Mr. Rothstein said it was empathy for the uninsured and disdain for partisanship that swayed Chief Justice Roberts, making his the decisive vote.

"It's a very odd decision," said Mr. Rothstein. "The conservative guy went liberal."

Mr. Rothstein further speculated about Chief Justice Roberts' motives when he said that the chief justice's experience with his own health issues and working in big business might have contributed to his decision. Mr. Rothstein said Chief Justice Roberts had good health care when he needed it and that "He was probably thinking about the millions of people who are less fortunate than he is."

Mr. Rothstein said Chief Justice Roberts needed to land on "the right side of history and morality" and these, too, probably influenced his vote.

Notice in all of this there is nothing about the Constitution. And what's this about morality? Whose morality would that be? Is it a fixed morality, or one based on opinion polls and wanting to land on "the right side of history," whatever that means? Liberal justices regularly decide cases based on such non-constitutional irrelevancies. Why must a conservative?

This is the "Oprahfication" of America, in which feelings trump truth and personal experience and class guilt rule, not the Constitution. Oprah Winfrey, who endorsed Barack Obama in 2008, might head a new cabinet department should Mr. Obama win a second term: the Department of Feelings.

The Supreme Court didn't worry about morality and which side of history it was on when it decided to make prayer and Bible reading illegal in public schools a half-century ago -- and what about the "morality" of ripping constitutional protection from unborn babies? Whose moral code decided that case?

This sounds like selective morality by those academics who will write history. Such reasoning is not based on sound legal principles like the Constitution, much less a moral code created by one more "supreme" than the Supreme Court.

Mr. Rothstein said, "Roberts wanted to show that the Supreme Court is more responsible to legal principles than they are to partisan principles. He has eyes on his legacy."

Again, what does this have to do with the Constitution? At future confirmation hearings before the Senate Judiciary Committee, should senators ask questions about legacy, morality and history in addition to the nominee's views of the Constitution and individual cases?

If the majority on the Supreme Court is to continue with such unsound judgments, maybe we should consider changing our national anthem from "The Star-Spangled Banner," to that irritating '70s song "Feelings."